It’s a question of what you can see and hear on videotape, and perhaps what you can’t.
Body cam footage from the investigating officer in a drug case doesn’t appear to reveal him obtaining consent to search a Massachusetts man arrested on felony charges. That suspect is now alleging that officer lied in a sworn statement.
However, that officer, John Helfant, now the police chief in Northfield, says he did gain that consent, though he concedes the body cam footage and audio doesn’t do a good job of picking it up.
He points to a portion of the tape where he says the suspect in the passenger seat of a vehicle tells him in a soft voice, “Search,” though on the body cam footage obtained and reviewed by VDigger, those words are not heard.
Helfant, who reviewed the video Thursday with VTDigger, agreed that the word is not audible on the video. That passenger, he said, makes the comment after a brief exchange with a woman driver of the vehicle.
It’s at that point, Helfant said, they both give consent to searches.
“She turns to him and looks right at him. He says, “Search,” which I submit to you, you can’t hear, but he says one word, he says, ‘Search,’” Helfant said Thursday. “She immediately turns forward and gives her consent.”
Helfant then added that while you can hear the woman, who is closer to him, it’s not possible from the body cam footage to hear the man in the passenger seat about 4 feet away. “You’re not going to hear it, the audio recording does not pick it up, but I heard it,” Helfant said.
The man is also holding up a phone near the front of his mouth so it’s difficult to see if his mouth is moving.
The officer talked of the difficulty of the body cam technology capturing exactly what an officer hears and sees at a scene.
“To me, not only did I hear him say ‘search’, I saw him say ‘search’. My eyes are 12 inches over the camera,” Helfant said of the body cam that was attached to his chest that night. “My camera is blocked by the phone, my eyes are not blocked by the phone.”
A DVD of the body cam footage from Helfant, then a Berlin Police Department sergeant, was admitted into evidence earlier this month during a hearing in Washington County criminal court in Barre in the case of 26-year-old Jose Inostroza.
The Springfield, Massachusetts, man wants to withdraw his guilty pleas to felony heroin and cocaine possession charges as well as a misdemeanor count of marijuana possession.
The move comes after Inostroza learned from his attorney that Helfant, who arrested him in July 2018, allegedly didn’t obtain the proper consent to search his backpack where the drugs were found.
A hearing on that motion took place earlier this month.
Avi Springer, Inostroza’s attorney, contended that, despite Helfant stating in a sworn affidavit supporting the charges against his client that he obtained consent for the search, the officer’s body cam footage told a different story.
A police sergeant found a felony amount of heroin and crack cocaine when he pulled over Beth Preus (foreground) and Jose Inostroza, but body cam footage leaves unclear whether he obtained permission to search Inostroza’s bag.
Washington County State’s Attorney Rory Thibault did not contest the assertion during the hearing, and in his own filing questioned the legality of the search himself. The prosecutor said if the judge allows Inostroza to withdraw his guilty pleas, he will dismiss the charges.
Springer entered a copy of the DVD of Helfant’s body cam footage into evidence at that hearing for Judge Mary Morrissey to review, but it was not played in open court.
Morrissey has not yet made a ruling on whether to allow Inostroza to withdraw his guilty pleas, but this week, after the judge granted a request from VTDigger, the news organization obtained a copy of that body cam footage.
The roughly 45-minutes of video from Helfant’s body cam admitted into evidence begins after a the vehicle is stopped with him talking to the driver, Beth Preus of Middlesex, and seeing a crack cocaine rock near her left leg inside the car.
Inostroza was a passenger in the vehicle.
Helfant then spent several minutes talking to Preus as he sought consent to the search the vehicle.
“So,” Helfant told her, “the way this works in Vermont when I have probable cause to search a motor vehicle, OK, is you can allow a search now or you can require that I seize the vehicle and the entirety of its contents, which means literally everything in the car, like absolutely everything, including you guys.”
He then added, “You can allow me to search the vehicle and its contents at roadside, or you can require that I seize everything and apply for a search warrant for the search, the choice is yours.”
Preus doesn’t answer, and appears to be thinking about what to do.
“I mean, just from your reaction, I’ve done this for 28 years, and just from your reaction, I already know there is more in the car,” Helfant then told her. “I mean, it’s pretty much a known fact to me, at this point, it’s just what quantity and where it is in the car.”
Again he added, “The choice is yours, I’m not going to tell you which one to choose.”
Helfant then said to her it would take him between 20 to 30 minutes to search both of them and the car at roadside. However, he said, the process would be much longer if he were required to get a warrant.
Northfield Police Chief John Helfant. Photo from Northfield Police website
“If you require that I seize the vehicle and apply for a warrant from a judge then it’s probably not going to be ‘til tomorrow or even sometime over the weekend, whenever a judge decides to look at it, the warrant,” Helfant said.
Again, he said Preus. “It’s totally up to you.”
He then asked her how much more drugs are the car, telling her, “I mean there is obviously more in the car.”
Helfant continued, “Cause if there wasn’t more in the car, then the answer right off your lips would have been, sure go ahead and search it, there is nothing else in the car, and that wasn’t what just happened.”
Preus eventually agreed to the search and stepped out of the vehicle.
Inostroza remained in the vehicle, in the passenger seat with his backpack on the floor in front of him. Other than providing Helfant with an identification card that he pulled from his backpack, Inostroza has little verbal contact with the officer.
Instead, another officer who responded to the scene can be seen in Helfant’s body cam footage standing on the passenger side of the vehicle. That officer’s body cam footage was not admitted into evidence at hearing earlier this month.
All the parties appear to agree that second officer’s body cam doesn’t contain video or audio regarding the granting of consent to search.
Inostroza eventually stepped out of the vehicle and Helfant searched the car. Inside the car, Helfant found a felony amount of heroin and crack cocaine in Inostroza’s backpack. Inostroza was charged and arrested.
In the body cam footage, Helfant talked about how he conducts such searches.
“I get really streamlined on this stuff,” he can be heard saying to another officer. “I literally only take what I’m going to take into evidence, I don’t take all the piddly crap because it’s just a bunch of crap we’ve got to put into evidence, and for what?”
Later, when the search is near complete, Helfant told another officer at the scene, “They both gave permission to search the entirety of the vehicle, their persons and their contents.”
He added, “Because they both gave permission we don’t have to ask them individually about each bag.”
At another point he said of the seized drugs, “It’s a good grab right here.”
Helfant filed an affidavit in support of the drug charges against Inostroza, writing about obtaining consent to search.
“I advised them that I had probable cause to search the vehicle and the entirety of the its contents which included their persons,” Helfant wrote. “I advised the occupants that they could allow a search at roadside or require that I seize the vehicle and apply for a search warrant from a judge.”
He added, “I advised them that the choice was theirs. Both occupants consented to a search of the vehicle, its contents and themselves.”
Springer, Inostroza’s attorney, said during the hearing this month that he had raised the issue of the discrepancy over the search with his client prior to Inostroza agreeing to the plea deal earlier this year.
His client, the defense attorney said, was faced with a choice of either getting out of jail by pleading guilty and receiving a time served sentence, or contesting the legality of the search through further litigation while remaining incarcerated for lack of bail.
In the end, Springer said, Inostroza choose freedom so he could go to Massachusetts and be with his young child.
Now, with the prosecutor having had more time to review the body cam footage and not objecting to his client withdrawing those earlier guilty pleas, Springer asked the judge to allow Inostroza to do just that.
Thibault, the prosecutor, submitted a filing regarding Inostroza’s request to withdraw his guilty pleas. In that filing, Thibault also questions the legality of the search.
Thibault wrote that while Helfant was talking about obtaining consent to search the vehicle, Preus looked at Inostroza several times.
“The video of the stop does not capture any discernible words from the Defendant during this time, from either officers’ body camera, and there is not a clear indication of affirmation or assent {e.g. nodding or gesturing} made by the defendant to (Preus) suggesting consent,” the prosecutor wrote.
“Rather,” Thibault added, “the Defendant appears to remain stationary and silent during this time.”
Later in the filing the prosecutor wrote, “At no point does the Defendant appear to provide clear or unequivocal consent to search the vehicle or the bag under his apparent exclusive custody and control therein.”
Thibault said the nearly five minutes that Helfant spent trying to obtain consent to conduct the search from Preus also raises a question of her “voluntariness” at that time.
“Under the circumstances,” he wrote, “her unwillingness to provide consent and hesistation may have led other reasonable officers to seize the vehicle and apply for a search warrant – likely to have been granted based on the rock of crack-cocaine in plain view and other paraphernalia on the center console.”
Thibault {earlier this year} asked the Vermont Attorney General’s Office to investigate the matter, and that review remains ongoing.
AG probing Northfield police chief over allegation of untruthfulness
Thibault this week declined to comment, referring questions to his earlier court filing.
Helfant, who has since been hired as the Northfield police chief, is currently on administrative duty only as the attorney general’s probe remains ongoing.
In addition to saying that heard Inostroza say, “Search,” when he was in the vehicle, Helfant said Thursday that the Massachusetts man’s actions after he stepped out of the vehicle indicated that he was aware of what was taking place.
“When he gets out of the car you don’t hear him, say, “No,” Helfant said. “Why? Because he knows he said, ‘Search.’”
Asked why he didn’t obtain a clear audible recording on his body cam from Inostroza, Helfant replied, “You have to understand, I can’t review this video while it’s recording. I don’t know it doesn’t capture it. I don’t have any idea that it didn’t capture it.”
He then added, “This isn’t a movie set, I don’t get to go back and do a retake, I can’t pack everybody up and say, ‘Hey, let’s go back and redo this thing because I couldn’t hear some things on the video.’”
At the hearing in the case earlier this month on whether Inostroza would be allowed to withdraw his guilty plea to the drug charges, Helfant sat in the courtroom. However, neither the prosecutor or Inostroza’s attorney called him to the stand to testify about the body cam footage.
At no point, Helfant said Thursday, has he been asked to review the video with the prosecutor, the defense attorney, or the attorney general’s office.
David Sleigh, Helfant’s attorney, said Thursday that typically if there is a question about body cam footage and consent, a motion to suppress evidence is filed, the officer is deposed or testifies, and a judge makes a ruling.
That didn’t happen in this case, he added.
Sleigh called the move to have Helfant investigated by the Attorney General’s Office a “knee jerk” reaction.
“These recordings are inherently limited,” he added, “they aren’t managed by sound engineers.”
Read the story on VTDigger here: Officer in drug search: ‘The audio recording does not pick it up, but I heard it’.